WVC 23 - 2 - 1
§23-2-1. Employers subject to chapter; elections not to provide
certain coverages; notices; filing of business
registration certificates.
(a) The State of West Virginia and all governmental agencies
or departments created by it, including county boards of education,
political subdivisions of the state, any volunteer fire department
or company and other emergency service organizations as defined by
article five, chapter fifteen of this code, and all persons, firms,
associations and corporations regularly employing another person or
persons for the purpose of carrying on any form of industry,
service or business in this state, are employers within the meaning
of this chapter and are required to subscribe to and pay premium
taxes into the Workers' Compensation Fund for the protection of
their employees and are subject to all requirements of this chapter
and all rules prescribed by the Workers' Compensation Commission
with reference to rate, classification and premium payment:
Provided, That rates will be adjusted by the commission to reflect
the demand on the compensation fund by the covered employer.

(b) The following employers are not required to subscribe to
the fund, but may elect to do so:

(1) Employers of employees in domestic services;

(2) Employers of five or fewer full-time employees in
agricultural service;

(3) Employers of employees while the employees are employed
without the state except in cases of temporary employment without the state;

(4) Casual employers. An employer is a casual employer when
the number of his or her employees does not exceed three and the
period of employment is temporary, intermittent and sporadic in
nature and does not exceed ten calendar days in any calendar
quarter;

(5) Churches;

(6) Employers engaged in organized professional sports
activities, including employers of trainers and jockeys engaged in
thoroughbred horse racing; or

(7) Any volunteer rescue squad or volunteer police auxiliary
unit organized under the auspices of a county commission,
municipality or other government entity or political subdivision;
volunteer organizations created or sponsored by government
entities, political subdivisions; or area or regional emergency
medical services boards of directors in furtherance of the purposes
of the Emergency Medical Services Act of article four-c, chapter
sixteen of this code: Provided, That if any of the employers
described in this subdivision have paid employees, to the extent of
those paid employees, the employer shall subscribe to and pay
premium taxes into the Workers' Compensation Fund based upon the
gross wages of the paid employees but with regard to the
volunteers, the coverage remains optional.

(8) Any employer whose employees are eligible to receive
benefits under the federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §901, et seq., but only for those
employees eligible for those benefits.

(c) Notwithstanding any other provision of this chapter to the
contrary, whenever there are churches in a circuit which employ one
individual clergyman and the payments to the clergyman from the
churches constitute his or her full salary, such circuit or group
of churches may elect to be considered a single employer for the
purpose of premium payment into the Workers' Compensation Fund.

(d) Employers who are not required to subscribe to the
Workers' Compensation Fund may voluntarily choose to subscribe to
and pay premiums into the fund for the protection of their
employees and in that case are subject to all requirements of this
chapter and all rules and regulations prescribed by the commission
with reference to rates, classifications and premium payments and
shall afford to them the protection of this chapter, including
section six of this article, but the failure of the employers to
choose to subscribe to and to pay premiums into the fund shall not
impose any liability upon them other than any liability that would
exist notwithstanding the provisions of this chapter.

(e) Any foreign corporation employer whose employment in this
state is to be for a definite or limited period which could not be
considered "regularly employing" within the meaning of this section
may choose to pay into the Workers' Compensation Fund the premiums
provided for in this section, and at the time of making application
to the Workers' Compensation Commission, the employer shall furnish a statement under oath showing the probable length of time the
employment will continue in this state, the character of the work,
an estimate of the monthly payroll and any other information which
may be required by the commission. At the time of making
application the employer shall deposit with the commission to the
credit of the Workers' Compensation Fund the amount required by
section five of this article. That amount shall be returned to the
employer if the employer's application is rejected by the
commission. Upon notice to the employer of the acceptance of his
or her application by the commission, he or she is an employer
within the meaning of this chapter and subject to all of its
provisions.

(f) Any foreign corporation employer choosing to comply with
the provisions of this chapter and to receive the benefits under
this chapter shall, at the time of making application to the
commission in addition to other requirements of this chapter,
furnish the commission with a certificate from the secretary of
state, where the certificate is necessary, showing that it has
complied with all the requirements necessary to enable it legally
to do business in this state and no application of a foreign
corporation employer shall be accepted by the commission until the
certificate is filed.

(g) The following employers may elect not to provide coverage
to certain of their employees under the provisions of this chapter:

(1) Any political subdivision of the state including county commissions and municipalities, boards of education, or emergency
services organizations organized under the auspices of a county
commission may elect not to provide coverage to any elected
official. The election not to provide coverage does not apply to
individuals in appointed positions or to any other employees of the
political subdivision;

(2) If an employer is a partnership, sole proprietorship,
association or corporation, the employer may elect not to include
as an "employee" within this chapter, any member of the
partnership, the owner of the sole proprietorship or any corporate
officer or member of the board of directors of the association or
corporation. The officers of a corporation or an association shall
consist of a president, a vice president, a secretary and a
treasurer, each of whom is elected by the board of directors at the
time and in the manner prescribed by the bylaws. Other officers
and assistant officers that are considered necessary may be elected
or appointed by the board of directors or chosen in any other
manner prescribed by the bylaws and, if elected, appointed or
chosen, the employer may elect not to include the officer or
assistant officer as an "employee" within the meaning of this
chapter: Provided, That except for those persons who are members
of the board of directors or who are the corporation's or
association's president, vice president, secretary and treasurer
and who may be excluded by reason of their positions from the
benefits of this chapter even though their duties, responsibilities, activities or actions may have a dual capacity of
work which is ordinarily performed by an officer and also of work
which is ordinarily performed by a worker, an administrator or an
employee who is not an officer, no other officer or assistant
officer who is elected or appointed shall be excluded by election
from coverage or be denied the benefits of this chapter merely
because he or she is an officer or assistant officer if, as a
matter of fact:

(A) He or she is engaged in a dual capacity of having the
duties and responsibilities for work ordinarily performed by an
officer and also having duties and work ordinarily performed by a
worker, administrator or employee who is not an officer;

(B) He or she is engaged ordinarily in performing the duties
of a worker, an administrator or an employee who is not an officer
and receives pay for performing the duties in the capacity of an
employee; or

(C) He or she is engaged in an employment palpably separate
and distinct from his or her official duties as an officer of the
association or corporation;

(3) If an employer is a limited liability company, the
employer may elect not to include as an "employee" within this
chapter a total of no more than four persons, each of whom are
acting in the capacity of manager, officer or member of the
company.

(h) In the event of election under subsection (g) of this section, the employer shall serve upon the commission written
notice naming the positions not to be covered and shall not include
the "employee's" remuneration for premium purposes in all future
payroll reports, and the partner, proprietor or corporate or
executive officer is not considered an employee within the meaning
of this chapter after the notice has been served. Notwithstanding
the provisions of subsection (g), section five of this article, if
an employer is delinquent or in default or has not subscribed to
the Fund even though it is obligated to do so under the provisions
of this article, any partner, proprietor or corporate or executive
officer shall not be covered and shall not receive the benefits of
this chapter.

(i) "Regularly employing" or "regular employment" means
employment by an employer which is not a casual employer under this
section.

(j) Upon the termination of the commission, the criteria
governing which employer shall or may subscribe to the Workers'
Compensation Commission shall also govern which employers shall or
may purchase Workers' Compensation insurance under article two-c of
this chapter.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
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